Medicolegal aspects

The Critical Care Unit is a source of many medicolegal problems. Patients are often not competent to consent to treatment. They may be admitted following trauma, violence, or poisoning, all of which may involve a legal process. Admission may also follow complications of treatment or medical mishaps occurring elsewhere in the hospital. The nature of critical illness is such that complications are common and litigation may follow.

Consent and agreement

Many procedures in critical care are invasive or involve significant risk. The patient is often not competent to consent for such treatment and, in many countries, surrogate consent or assent cannot be legally given by the next of kin. Nevertheless, it is, important that the risks and benefits of any major or risky procedure are explained to the next of kin and that this discussion is documented in the case records. For major decisions, particularly those involving withdrawal or withholding of life-prolonging treatments, the patient should ideally be involved in discussions. If not feasible, relatives should be asked to give their view of what the patient would want in this situation although their views should not necessarily dictate decisions, responsibility for which lies with medical staff. Research presents consent problems in the critically ill and requires close ethical committee supervision.

Note-keeping

It is impossible to record everything that happens in critical care in the patients’ notes. The 24h observation chart provides the most detailed record of what has happened but summary notes are essential. Such notes must be factual without unsubstantiated opinions about the patient or about previous treatment. All entries must be timed and signed. Records of ward rounds must include the name of the consultant leading the round. These notes may be used later in legal proceedings; they may be used against you but, if well kept, will usually form the best defence.

Errors and mishaps

In the event of an error or mishap, the episode should be clearly documented after witnessed explanation to the patient and/or relatives.

An apology is not an admission of liability but is usually much appreciated, as is explanation in an open and transparent manner.

Dealing with the police

Most police enquiries relate to patients who are admitted after suspicious circumstances. While there is a duty to maintain patient confidentiality, it may be in the patient’s interests to impart information about them. This may be with the consent of the patient or the next of kin. Written statements or verbal information may be requested. Any information given should be strictly factual, avoiding opinion.

Dealing with the Coroner

The Coroner must be informed of any death where a death certifi cate cannot be issued. Death certifi cates can be issued where the death is

due to a natural cause and the patient has been seen professionally by the doctor within 14 days prior to death. The table opposite documents

the conditions requiring the Coroner to be informed. Where there is any doubt, the Coroner should be consulted.

Deaths which must be notifi ed to HM Coroner in the UK

No doctor attending within prior 14 days

Death without recovery from anaesthesia

Suicide

Sudden or unexplained death

Medical mishap

Industrial accident or disease or related to employment

Violence, accident, or misadventure

Suspicious circumstances

Alcoholism

Poisoning

Death in custody or shortly after detention